IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40742

Summary Calendar

LAWRENCE M. MILTON, 

 Plaintiff – Appellant

v.

U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Registered Holders

of GSRPM 2004-1, Mortgage Pass-Through Certificates; OCWEN LOAN

SERVICING, L.L.C., 

 Defendants – Appellees

Appeal from the United States District Court

for the Eastern District of Texas

Case No. 4:10-CV-538

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Lawrence Milton appeals the district court’s summary judgment in favor

of U.S. Bank National Association (“U.S. Bank”) and Ocwen Loan Servicing,

L.L.C. (“Ocwen”). For the following reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

January 18, 2013

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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BACKGROUND

Lawrence Milton purchased property located at 7712 Saragosa Creek Road

in Plano, Texas (the “Property”), with a loan memorialized by a purchase money

note in the amount of $295,000 (the “Note”), which was secured by a deed of

trust on the Property (the “Deed of Trust”). U.S. Bank is the current holder of

the Note and Deed of Trust, and Ocwen is the mortgage servicer for U.S. Bank.

It is undisputed that, in July 2009, Milton defaulted on his payment

obligations and Ocwen correspondingly sent Milton a Notice of Default, Notice

of Acceleration of Loan Maturity, and Notice of Foreclosure Sale. That fall,

Milton applied for a loan modification through the Home Affordable Modification

Program (“HAMP”). Milton alleges that, on October 2, 2009, Ocwen orally

represented that his home would not be foreclosed upon while his HAMP

application was pending, and that processing would likely take from 60 to 90

days. By letter dated October 13, 2009—a letter Milton alleges he never

received—Ocwen reported that Milton was not eligible for a HAMP loan

modification because the subject loan “failed the net present value or NPV test

as established by the government rules.” Ocwen separately mailed Milton a

notice informing him that a non-judicial foreclosure sale had been scheduled for

November 3, 2009. Milton alleges that, in response to that letter, he called

Ocwen to confirm that foreclosure would not proceed until his HAMP application

was processed. According to Milton, an Ocwen representative orally confirmed

that the Property would not be foreclosed upon while his application was

pending.

On November 3, 2009, the Property was sold at a foreclosure sale. Three

days later, Milton received a handwritten notice from Ocwen informing him of

the foreclosure. Milton alleges that over the next few days, he contacted Ocwen

on numerous occasions and was given conflicting information. According to

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Milton, some representatives informed him thathis HAMPapplication remained

pending; others informed him that it had been denied. Some told him that the

foreclosure sale had been stopped; others told him that the Property had been

sold and the sale was final.

On November 23, 2009, Milton filed this wrongful foreclosure action in

Texas state court, and defendants timely removed to federal district court for the

Eastern District of Texas on diversity grounds. The Second Amended

Complaint, the operative pleading, asserts claims for breach of contract,

promissory estoppel, fraud, negligence, gross negligence, negligent

misrepresentation, and unreasonable collection efforts. The district court

granted defendants’ joint motion for summary judgment, entered final judgment

in favor of the defendants on all counts, and dismissed the case with prejudice.

Milton timely appealed.

STANDARD OF REVIEW

We review a district court’s summary judgment de novo, applying the same

standard as the district court. Moss v. BMC Software, Inc., 610 F.3d 917, 922

(5th Cir. 2010). Summary judgment is warranted if, viewing all evidence in the

light most favorable to the non-moving party, the record demonstrates that there

is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law. Id. (citing FED. R. CIV. P. 56(a)). A fact is material

if it “might affect the outcome of the suit under the governing law,” and a dispute

is genuine if “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v.LibertyLobby, Inc., 477 U.S. 242, 248 (1986).

DISCUSSION

Plaintiff’s breach of contract claim is premised on Ocwen’s alleged oral

agreement to delay foreclosure until Milton’s HAMP application had been processed.

An agreement to delay foreclosure is subject to the Texas statute of frauds, and,

accordingly, must be in writing to be enforceable. See TEX. BUS. & COM. CODE §

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26.02(a), (b); Burnette v. Wells Fargo Bank, N.A., No. 4:0-CV-370, 2010 WL

1026968, at *4–*5 (E.D. Tex. Feb. 16, 2010) (applying Texas law); Deuley v.

Chase Home Fin. LLC, No. H-05-04253, 2006 WL 1155230, at *2 (S.D. Tex. Apr.

26, 2006) (applying Texas law); Krudop v. Bridge City State Bank, No. 09-05-111

CV, 2006 WL 3627078, at *4 (Tex. App.–Beaumont Dec. 14, 2006, pet. denied). 

The district court held, and we agree, that because there was no written

agreement to delay foreclosure, plaintiff’s breach of contract claim is barred by

the statute of frauds. Bank of Tex., N.A. v. Gaubert, 286 S.W.3d 546, 556 (Tex.

App.–Dallas, 2009, pet. dism’d w.o.j.).

The district court did not address plaintiff’s remaining claims for

promissory estoppel, fraud, negligence, gross negligence, negligent

misrepresentation, and unreasonable collection efforts on the basis that they

were inadequately briefed. We take no position on the adequacy of the briefing

below, and hold, for the following reasons, that judgment as a matter of law was

properly entered for the defendants.

Plaintiff’s promissory estoppel claim is unavailing because plaintiff has

failed to allege or introduce evidence that Ocwen promised to reduce its alleged

oral misrepresentations into writing. See Maginn v. Norwest Mortg. Inc., 919

S.W.2d 164, 168 (Tex. App.–Austin 1996, no writ) (holding that summary

judgment with respect to an estoppel claim is proper when no evidence exists to

establish an oral agreement to reduce an otherwise unenforceable promise to

writing, in satisfaction of the statute of frauds); see also Deuley, 2006 WL

1155230, at *2 (dismissing estoppel claim predicated on mortgage servicer’s

representation that it would accommodate plaintiffs’ request for loan assistance,

on the basis that the mortgage servicer never orally agreed to reduce that

promise to writing).

Plaintiff’s negligent misrepresentation claim fails because, “under Texas

law, promises of future action are not actionable as a

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negligent-misrepresentation tort.” See De Franceschi v. BAC Home Loans

Servicing, L.P., 477 F. App’x 200, 205 (5th Cir. 2012) (citing Scherer v. Angell,

253 S.W.3d 777, 781 (Tex. App.–Amarillo 2007, no pet.)); see also Edwards v.

Ocwen Loan Servicing, LLC, No. 9:10cv89, 2012 WL 844396, at *6 (E.D. Tex.

Mar. 12, 2012) (holding that plaintiff did not state a viable claim for negligent

representation because the alleged misrepresentation—the mortgage servicer

would notforeclose on the property while plaintiff’s loan modification application

was pending—was a promise of future conduct). But see Burnette, 2010 WL

1026968, at *7 (holding that plaintiff stated a viable claim for negligent

misrepresentation in alleging that a mortgage servicer misrepresented that a

“foreclosure sale would not occur while Defendants reviewed [plaintiff’s loan

modification application]”).1

Plaintiff’s negligence and gross negligence claims fail because, under

Texas law, there is “no special relationship between a mortgagor and mortgagee”

that would give rise to a stand-alone duty of good faith and fair dealing. UMLIC

VP LLC v. T & M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 612 (Tex.

App.–Corpus Christi, 2005, pet. denied); see also Burnette, 2010 WL 1026968, at

*8 (dismissing plaintiff’s gross negligence claim on that basis). 

Finally, plaintiff’s fraud and unreasonable collection efforts claims are not

supported by evidence sufficient to survive summary judgment. The summary

judgment record is devoid of any evidence, apart from Milton’s unsupported

speculation, that the purported misrepresentations were made knowingly or

with reckless disregard for their falsity, In re FirstMerit Bank, N.A., 52 S.W.3d

749, 758 (Tex. 2001), or were “willful, wanton, malicious, and intended to inflict

mental anguish and bodily harm,” EMC Mortg. Corp. v. Jones, 252 S.W.3d 857,

868 (Tex. App.–Dallas, 2008, no pet.). Moreover, his reliance on oral

To the extent that Burnette is inconsistent with this settled principle of Texas law, we 1

decline to follow it.

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representations by customer service representatives that were contradicted by

the terms of the loan agreement and the notice of foreclosure was not reasonable

as a matter of law. TMI, Inc. v. Brooks, 225 S.W.3d 783, 795 (Tex. App.–Houston

[14th Dist.], 2007, pet. denied). Viewed in the light most favorable to Milton, no

reasonable jury could conclude on the basis of the evidence before it that the

defendants’ actions were fraudulent and their collection efforts were

unreasonable. See Edwards, 2012 WL 844396, at *6–*7 . 

For the foregoing reasons, U.S. Bank and Ocwen are entitled to judgment

as a matter of law. AFFIRMED.

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